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Litch: Roberts’ Folly?

Tuesday, July 03, 2012By: C. Scott Litch

Some argue that Chief Justice Roberts was a genius for putting health care reform back into the political area, recasting the individual mandate as only viable under the taxing power vs. the commerce clause, and keeping the academic and media elite from carping about the illegitimacy of the Supreme Court.

There is no question that the Court’s decision puts the issue of repeal and replace squarely back in the political arena. However, there are several flaws in the “Roberts is a genius” line of reasoning.

First, why should the Chief Justice worry about elite moaning and groaning if he believed the individual mandate was unconstitutional? The mandate as a tax argument lacks merit, as sharply noted in the minority opinion. If the Supreme Court has a teachable moment to undercut the elitist notion that the Constitution places no limits on the federal government’s power, shouldn’t the Chief Justice be bold and courageous enough to make that argument? He might have faced the ire of many law professors, but likely would have the support of a majority of American citizens. Why should the conservative bloc on the court receive opprobrium for their interpretation of the Constitution when the liberal bloc is always ready to vote yes for any expansive reading of the Constitution that supports liberal social policy and the increase of government power? I would argue that a decision to overturn the law would have equally and fairly offered Americans a valid electoral choice. If you want a President to appoint justices who view the Constitution as posing no limits on government power, by all means re-elect Obama. If you want justices who understand the Constitution as imposing constraints, vote for Romney. Further, a ruling of unconstitutionality would also have put the legislative policy decisions squarely in play, as there would certainly be a vastly different approach between Congressional Democrats and Republicans as to the appropriate “replacement legislation.”

Second, if the Chief Justice really believed the law was unconstitutional, it is especially unseemly for him to engage in such a Machiavellian maneuver. Won’t this increase cynicism and decrease respect for the Court more than the impact of a 5-4 opinion striking down the law? The Court as an institution would surely have survived such as outcome.

Politically, the opinion hands the President a huge political victory. He and his supporters can argue that conservatives were off base in challenging the law’s constitutionality and wasted a lot of time and money in doing so. It gives legitimacy to the notion that, despite Roberts’ opinion, there is really no limit on the reach of the federal government. That the government cannot mandate a person to purchase a product by imposing a civil or criminal penalty, but can tax that individual if he or she does not purchase the product, is a distinction that seems without merit and without posing any real limit on government power.

Why do conservative justices have to yield to pressure to find a “middle ground” and compromise when there is never similar pressure on the four liberal justices to break their monolithic approach? When Roberts presumably could not convince a single one of these four justices to switch sides, why do they deserve special consideration for the Chief Justice to bend over backwards to support their expansionist reading of the Constitution? I fear ultimately the decision is just the next step on America’s slide towards a European style social welfare state, which is surely Obama’s goal. He has every right to argue that case, but not to expect the Supreme Court to ignore Constitutional restraints which we had thought separated America from the worse excesses of European-style big government socialism.

Roberts in his confirmation hearings said he considered a judge to be the “umpire.’ As Rich Lowry of National Review points out, in this case apparently the umpire blinked. And we may all be paying the price for this blinking for many years to come.